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Saturday, December 1, 2012

Dismissal as a Sanction Against Prosecution is not an Acquittal

State
v. Clemente (ICA November 30, 2012)

Background. Drew Clemente was prosecuted for one count of
excessive speeding and one count of operating a vehicle under the influence.
The key witness for the prosecution was the officer who pulled him over:
Officer Jeffrey Tallion. At the bench trial, Officer Tallion testified for the
prosecution, but did not finish on the first day. The District Court ordered
Officer Tallion to come back nine days later at 10:00 a.m. On the second day,
the court bailiff confused Officer Tallion with another officer in a different
case who had called in sick.

The District Court called the parties ahead of
schedule and told them that Officer Tallion was ill. The prosecution orally moved
to continue the trial. The District Court denied the motion and sua sponte dismissed the case with
prejudice. About an hour later, Officer Tallion showed up, as scheduled, and
the case was recalled. The bailiff realized her error and explained it to the
court. The prosecution orally moved for reconsideration of the dismissal based
on the mistake. Clemente opposed. The District Court denied the motion. Nine
days later, the prosecution filed a written motion for reconsideration.
Clemente again opposed and the District Court again denied the motion. The
District Court explained that reopening the case would violate the Double
Jeopardy Clauses of the State and federal constitutions, HRS § 701-110, and
that it did not have jurisdiction to reopen the case. The prosecution appealed.

The Double
Jeopardy Clause. "[N]or shall
any person be subject for the same offense to be twice put in jeopardy."
Haw. Const. Art. I, Sec. 10. Similarly, "nor shall any person subject for
the same offense to be twice put in jeopardy of life or limb." U. S.
Const. Am. V. These clauses, inter alia,
"protect[] against a second prosecution for the same offense after
acquittal." State v. Dow, 72 Haw. 56, 58, 806 P.2d 402, 404 (1991).
A defendant is "acquitted" "only when the ruling o the judge,
whatever its lable, actually represents a resolution in the defendant's favor,
correct or not, of some or all of the factual elements of the offense
charged." State v. Poohina, 97 Hawai'i 505, 509, 40 P.3d 907, 911
(2002). SeealsoState v. Markowski, 88 Hawai'i 477, 484,
967 P.2d 67, 681 (App. 1998) (defendant could be retried because dismissal
based on defective charging was not related to his "guilt or
innocence.").

Here, the ICA compared this case to Poohina,
where the Hawai'i Supreme Court held that a dismissal sua sponte is not a ruling on the merits of the case and did not
rule on the defendant's "guilt." So if that was not an acquittal, the
ICA reasoned that Clemente was not acquitted either. Instead, the District
Court dismissed the case with prejudice as a sanction against the prosecution
for wrongly concluding that it had a no-show witness.

HRS § 701-110: A
Similar Analysis. The Double Jeopardy
analysis has been codified by HRS § 701-110. A second prosecution is barred by
a former prosecution when "the former prosecution resulted in an acquittal
which has not subsequently been set aside. There is an acquittal if the
prosecution resulted in a finding of not guilty by a trier of fact or in a
determination by the court that there was insufficient evidence to warrant a
conviction." HRS § 701-110(1). According to the ICA, this statute
"mimics" the constitutional analysis, and it did not go through a
second analysis. It simply held that HRS § 701-110 was not a statutory bar for
re-trial.

District Court Jurisdiction
is good for ten days After the Ruling. The
ICA rejected the District Court's conclusion that it had no jurisdiction to
revisit the issues raised by the prosecution. The District Court may
"[e]nter final judgments; and alter or set aside any judgment within ten
days following the date of its rendition or as provided by the rules of the
court[.]" HRS § 604-7(a)(3). Here, the ICA noted that the prosecution
orally moved for reconsideration within one hour of the dismissal with
prejudice. That meant, held the ICA, that the District Court had the power to
set aside the dismissal order and it abused its discretion in denying the oral
motion.

But What about the
Written Motion? The ICA made no reference to the written motion
filed nine days after the dismissal. Arguably, the District Court still had the
power to review it because it was within the ten day period. But what if the
written motion was filed after the ten day period? Under the ICA's analysis, it
would probably be irrelevant since the oral motion should have been considered
in the first instance.

3 comments:

If the district court exercised discretion to dismiss the Clemente case, rather than say it was barred by the acquittal, would the outcome have been different? Or is your reading that it is an abuse of discretion to just dismiss the case under those circumstances at all?

My cursory reading implies the judge basically just said "If you have no witness, no evidence, judgement of acquittal" but didn't go through those steps .

Excellent point, Mark! The ICA took the issue of using a dismissal as a sanction in State v. Correa. It came down pretty hard on the Dist. Ct. there. Search for it on the blog to read more (I can't figure out how to do links on comments.)

And no, the ICA did not go through those steps. At the start of its discussion, the ICA stated that there "is no dispute that the District Court erred in dismissing the charges[.]"

The ICA narrowed the issue to whether the Dist. Ct. had any authority to remedy its mistake.

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